McLaughlin v Governor

• Jurisdiction: Cayman Islands
• Judge: (Graham, J.)
• Judgment Date: 09 March 2001
• Court: Grand Court (Cayman Islands)
• Date: 09 March 2001

Grand Court

(Graham, J.)

McLAUGHLIN

and

GOVERNOR

P.S.L. Simon for the plaintiff;

Miss J. Wilson, Crown Counsel, for the Crown.

Case cited:

(1) R. v. Home Secy., ex p. DoodyELR, [1994] 1 A.C. 531; sub nom. Doody v. Home Secy., [1993] 3 All E.R. 92, dicta of Lord Mustill applied.

Legislation construed:

Public Service Commission Regulations, 1985, reg. 28: The relevant terms of this regulation are set out at para. 9.

Cayman Islands (Constitution) Order 1972 (S.I. 1972/1101), s.54:

‘The Governor, in Her Majesty”s name and on her behalf, may constitute such offices for the Islands as may lawfully be constituted by Her Majesty and, subject to the provisions of any law in force in the Islands, may make appointments . . . to any office; and any person so appointed shall, unless it is otherwise provided by any such law, hold office during Her Majesty”s pleasure.’

Administrative Law-public officers-abolition of office-no obligation under Public Service Commission Regulations, reg. 28, to decide which office-holder to retire if office is personal to holder and unique within Government department

Administrative Law-public officers-abolition of office-General Orders 1987, Chapter 4, para. 22 complied with if comparable employment identified but unacceptable to office-holder, office-holder informed why no other employment suitable and given opportunity to make representations-no obligation to inform office-holder of all public service vacancies

The plaintiff applied for leave to seek judicial review of the Governor”s decision to retire him on the ground that his office had been abolished.

The plaintiff was appointed Deputy Director of the Mosquito Research & Control Unit in 1991. In 1996, following successive Government reorganizations in which the Unit passed under the control of various Government departments, was abolished and reconstituted, he became an Administrative Officer Grade 1 in the Ministry of Agriculture, Environment, Communications & Works. The office was personal to him within the Ministry and he performed the duties of Research Director, as well as some additional administrative duties.

In 1998, in the course of a further restructuring entailing significant budget cuts, the Permanent Secretary of the Ministry recommended to the Chief Secretary that the plaintiff”s office be abolished on the ground that four of his seven areas of responsibility had been transferred from him and his level of salary was inappropriate to his remaining functions. He would no longer be fully employed and the post could not be justified. The Chief Secretary obtained from personnel details of alternative posts within the public service. Two posts on the same salary scale required special skills which the plaintiff possessed, but one was deemed unsuitable by the Permanent Secretary, as it involved the plaintiff”s subordination to an officer whom he had once supervised. Seven other posts existed at a lower salary level.

The Chief Secretary told the plaintiff that it had been recommended that his office be abolished from the beginning of the following financial

year and that there were no other areas in the public service to which he could be posted. He then referred the matter to the Public Service Commission. The Public Service Commission recommended abolition of the plaintiff”s post and his retirement, on the basis that there was no suitable vacancy to which he could be transferred. On the advice of the Commission, the Governor decided to retire the plaintiff. He was paid three months” salary in lieu of notice.

The plaintiff submitted that the termination of his employment had been procedurally unfair, since (a) no one had discussed with him the alternative posts to which he might be transferred and he had been offered no alternative employment; (b) there had been no comparative examination, as required by reg. 28 of the Public Service Commission Regulations 1985, to decide which office should be abolished; and (c) Chapter 4, para. 22 of the Public Service General Orders 1987 required that his career prospects had to have failed completely before his office could be abolished.

The Governor submitted in reply that (a) the plaintiff had been offered one of the two posts at his present salary scale by the Permanent Secretary, but had rejected it; the other vacancies at this level and lower levels were unsuited to his experience and qualifications and the Chief Secretary had explained this to the plaintiff; (b) since the plaintiff was the only person in the post of Administrative Officer Grade 1 in the Ministry, there had been no need to decide which post to abolish; and (c) since the plaintiff”s office was to be abolished and re-deployment was not an option, para. 22 of Chapter 4 had been satisfied.

Held, refusing to make the declaration sought:

(1) The plaintiff”s employers had not been obliged under reg. 28 of the Public Service Commission Regulations 1985 to decide which office was to be abolished, since the office of Administrative Officer Grade 1 was not ‘one of a series of such offices’ but was personal to the plaintiff and the only such post within the relevant Ministry. Nevertheless, the evidence of the Personnel Department and the Permanent Secretary showed that the decision-makers had proceeded as if that obligation did exist. The decision could not be impugned on this basis (paras. 9–10).

(2) Nor was the decision to retire the plaintiff in breach of the General Orders 1987. Paragraph 22 of...